It is possible to disagree with court judgments, arguments can be argued, but the judgments must be respected. This is what the seriousness of the law in a democratic society requires. The judges themselves also have the right to submit their own dissenting or convergent opinions to judgments passed by a majority of votes, which justify the way of interpreting provisions that require clarification in the light of the adopted constitutional axiology. Under no circumstances does the court—even if it is the highest judicial body in the country—create a new law. This is not within its competences, which are precisely indicated by the tripartite division of powers. It is therefore surprising that eleven judges of the Constitutional Tribunal adjudicating on the application of the provisions permitting eugenic abortion, have been held accountable for a “change” in the law which, after all, has not taken place. The Constitutional Tribunal has ruled what the law is and not what it is supposed to be. This is where the legislator—in whose hands the law rests—takes over, as well as the obligation to adapt the provisions to the issued judgment.

In accordance with the Constitutional Tribunal, the current constitutional premises do not allow the life of a child conceived in the mother’s womb to be taken away, in one particular case. In the Act of 7 January 1993 on family planning, protection of the human fetus and the conditions for the admissibility of the termination of pregnancy—the provisions of Article 4a (1) (2) and Art. 4a (2), the content of the first sentence reads as follows: “Termination of pregnancy may only be performed by a doctor, in the case when prenatal examinations or other medical conditions indicate a high likelihood of severe and irreversible fetal impairment or an incurable life-threatening disease” and the second “In the cases referred to in paragraph 1 (2), termination of pregnancy is allowed until the fetus has the capacity of living independently outside the body of the pregnant woman.”

The Constitutional Tribunal, on the basis of the content of constitutional norms, and thus the acts of higher order, concluded that the application of these provisions in practice leads to a violation of Art. 38 of the Polish Constitution, which guarantees that “the Republic of Poland provides every person with the legal protection of life.” The interpretation of the provisions by the Constitutional Tribunal thus remains consistent in the light of the norms of the constitutional and international law. The Polish constitutional law is based on Christian ethics, the ethics of “life,” not death. At the same time, it is also the ethics of support, not the denial of life and its protection from conception to natural death. The Polish legal perspective concerning the protection of conceived life against discrimination and annihilation, even in the case of a high probability of severe and irreversible impairment of the fetus or an incurable disease that threatens its life, is fully in line with international standards for the protection of persons with disabilities. The international law does not provide for the “right to abortion,” which is only seen in the terms of abandoning the “right to life.” Even in the U.S., in the country where abortion was legalized by the ruling of the Supreme Court in the judgment of Roe v. Wade in 1973, this law still remains an unsteady precedent, thus it is not inviolable, with a clear tendency of imposing additional restrictions on its application by individual state authorities. However, the approach of the American society towards judgments in the federal Supreme Court of the United States—which is sometimes being called a social seismograph—is different. The Polish Constitutional Tribunal does not play such a socially important role, even though the events that have taken place in recent days throughout Poland would point to something completely different. The main task of the Polish Constitutional Tribunal is to check the coherence of the legal system and eliminate provisions which remain incompatible with higher-level legal standards.

The hierarchy of norms and values behind them requires a broad and multi-directional discussion. However, it must be substantive and based on rationality. It is important to be ready to listen to the arguments of the other party in the conflict. This is of particular importance especially in matters which are fundamental to the future of the human civilization. The present forms of expressing social objection by a part of the Polish society towards the judgment of the Constitutional Tribunal are, in fact, a contradiction of the idea of dialogue and discussion. The new social grouping, which is difficult in defining as a whole (mostly consisting of young women and girls, often mothers), focuses on organizing projects promoting a woman’s right of making her own choices—the least rational in the present, perhaps the most difficult moment for Poland during the global pandemic, but eminently spectacular for the outside observer.

By deliberately violating the right to assembly, which is limited by the current epidemiological situation, they are emphatically manifesting their opposition of caring for other people and for life, even if it is a defenseless fetus. The raging pandemic in the country, which is taking an increasing number of deaths and bringing the health service to the brink of endurance in the struggle for every human life, is becoming completely irrelevant in the fight for the right to eugenic abortion—in some way completing the panorama of “death” that is to dominate life. This is what the Polish “enlightenment” in the 21st century is all about. This revolutionary battle for the right to one’s own “selfishness vel choice”—under the code name noble to them—through slogans that are obscene and offensive to others, has taken on one of the worst possible forms for the present civilization, through attacks on the religious freedom of fellow citizens.

Acts of vandalism, profanation of religious symbols, persistent obstruction or even prevention of the performance of religious acts, as well as verbal attacks on members of religious communities have become a form of struggle for women’s rights—a total and unprecedented novum on a global scale—based on the assumption that, since the judges sitting in the Constitutional Tribunal are believers and members of the Catholic Church, it is the Church—as the institution of shaping their consciences—that is responsible for the content of their judgment. The rebels and revolutionaries decided that a massive attack should be launched against church buildings, religious symbols and the believers. This idea is unprecedented, even in extremely liberal societies where the principle of respect for the autonomy of the religious sphere is understood and well established. Once again, it is worth referring to the social and legal conditions in the U.S., to which, paradoxically, supporters of the right to abortion and participants in the demonstrations are sighing. To their disappointment, it should be recalled that in the American legal system, religious freedom is the “first law” which is under special protection against outside interference. For Americans, the slogan “freedom from religion” also in the public space, remains incomprehensible. On the contrary, the American concept of the separation of Church and state is about protecting religion, not protecting the state “from religion.” It is also inconceivable that the church communities—which the sitting judges in the Supreme Court of the United States belong to—would be burdened by the choices they make. Therefore, it is sometimes worth looking at other societies before unleashing one’s own ideological war between life and death.

dr Weronika Kudła

Jagiellonian University in Cracow

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